Case Western Reserve Journal of
International Law
Volume 36 | Issue 2
2004
A Thorn on the Tulip - A Scottish Trial in the
Netherlands: The Story behind the Lockerbie Trial
David R. Andrews
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David R. Andrews, A Thorn on the Tulip - A Scottish Trial in the Netherlands: The Story behind the Lockerbie Trial, 36 Case W. Res. J. Int'l
L. 307 (2004)
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A THORN ON THE TULIP - A SCOTTISH TRIAL IN THE NETHERLANDS:
THE STORY BEHIND THE LOCKERBIE TRIAL*
David R. Andrewst
L Introduction
To public international lawyers, this is the story of how international
diplomatic action and, as one British official said, "the ingenious use" of
international law, including the UN Charter and its legal principles, were
successful in bringing the two Libyan suspects, Ali Mohmed Al Megrahi
and Al Amin Khalifa Fhimah, before a Scottish court sitting in the
Netherlands. The outcome of this story is already known. On January 31,
2001, Al Megrahi was found guilty of mass murder and sentenced to life
imprisonment. Al Amin Khalifa Fhima was found not guilty of murder and
immediately released.
What is less well known is the pivotal role the trial played in bringing
Libya back, more or less, into the fold with the community of nations.
Over the last year, there have been many noteworthy developments in
Libya.
In December 2003, the Bush Administration announced an
agreement with Libya to allow weapons inspectors to visit the country.
Those inspections resulted in the surrender and dismantling of equipment
* Prepared for the War Crimes Research Symposium: "Terrorism on Trial" at Case
Western Reserve University School of Law, sponsored by the Frederick K. Cox International
Law Center, on Friday, Oct. 8, 2004. In preparing my remarks for this speech I have relied
heavily on the excellent article on this topic by Tony Aust, the former Legal Counselor to
the Foreign and Commonwealth Office and the former Legal Adviser to the UK Mission to
the UN. The article can be found at Volume 49, pages 278-296 of the International
Comparative Law Quarterly. I also want to thank Bill Kissinger, my former law partner at
Bingham McCutchen LLP and former special assistant at the State Department, for his
assistance in preparing these remarks.
t In February 2005, Mr. Andrews retired from PepsiCo, Inc. where he served as the Senior
Vice President for Government Affairs, General Counsel and Secretary. Prior to joining
PepsiCo in February 2002, he was a partner at the international law firm of McCutchen,
Doyle, Brown & Enersen (now Bingham McCutchen), where he began his law practice 33
years ago. Mr. Andrews served as Chairman of the firm from 1991 to 1994. In 1997
President Clinton nominated Mr. Andrews to serve as the 19th Legal Adviser to the U.S.
Department of State, a position he held until April 2000. At the request of Secretary
Madeleine Albright and the President, Mr. Andrews then served as the Ambassador and
special Negotiator for Iran/U.S. Claims until January 2001. Mr. Andrews received the
highest civilian award of the State Department, the Distinguished Service Award for his
work in bringing about a resolution of the dispute between China and the United States over
compensation for the NATO bombing of the Chinese Embassy in Belgrade and for his lead
role in establishing the Scottish Court that sat in the Netherlands to try the two Libyans
accused of blowing up Pan Am flight 103 over Lockerbie Scotland.
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Libya used to develop nuclear and other illicit arms. In September 2004,
Libya made payments to the families who lost loved ones on Pan Am 103
and that same month, the Bush Administration, followed by the EU, lifted
trade sanctions against Libya. President Bush has spoken of how these
In fact, these
developments vindicate his anti-terrorism policy.
developments were the natural progression of events that began with the
Scottish trial in the Netherlands, a trial that came, as I will discuss shortly,
through the dedicated efforts of many people and, ultimately, a willingness
by Libya to turn over a new leaf in its dealings with the U.S. and Europe.
Today I will discuss how we -- the UK and U.S. -- were able to bring
about this trial, the challenges we faced and the lessons we can take away
from the experience. In the course of my discussion, I will also touch upon
the legal issues and underlying strategies that guided our efforts. Let me
begin however with some background.
1H. Background
The bombing of Pan Am 103 was the most horrifying act of mass
murder of the time-259 people blown out of the night sky over Lockerbie,
Scotland. At 7:03 pm, on December 22, 1988 a bomb exploded in the
cargo hold on the flight bound from London to New York. The bodies fell
within seconds on Lockerbie and across a vast area surrounding the small
town of 3000 people. Eleven people on the ground were killed. 189
Americans lost their lives. Among those killed were two lawyers from
PepsiCo.
After nearly three years of investigations, the UK and the U.S.
concluded that the evidence pointed to two alleged Libyan security agents
who had worked for Libyan Airlines in Malta. On November 13, 1991, the
Sheriff-that is judge-at Dumfries, Scotland, issued a warrant for the
arrest of the two Libyan nationals on the charges of murder. The next day,
November 14, 1991, a U.S. grand jury in Washington, DC handed down an
indictment for murder against Al Magrahi and Khalifa Fhima. This was the
culmination of the most extensive detective search in criminal history:
15,000 interviews conducted in over twenty countries, 35,000 photos, and
180,000 pieces of evidence. Scotland Yard was helped by a dozen experts
from the FBI as well as agents from other countries.
In another tragic event little noted in the U.S., on September 19, 1989,
eight months after the bombing of Pan Am 103, French UTA flight 772
from Paris exploded over Chad killing 171 people. About a month after the
U.S. and UK completed their investigation of the bombing of Pan Am 103,
the French on December 20, 1991 issued a communiqu6 announcing that a
judicial inquiry into the sabotage of the DC 10 aircraft had implicated
several Libyan nationals, and called upon Libya to produce all material
evidence, facilitate access to documents and respond to requests made by
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A THORN ON THE TULIP
the examining magistrate. For reasons known only to its government,
France did not seek extradition of the six Libyan nationals against whom
charges were later made, and instead tried them in absentia.
I1. Strategy
Let me turn now to the thinking that was at the foundation of the
strategy that was ultimately developed. As you will recall, the U.S.
response to the 1986 bombing of a Berlin nightclub was air attacks on one
of Muammar Gaddafi's palaces in Tripoli. Following the Pan Am 103
indictments, the Bush I Administration opted against military action.
Instead, working with the UK, it decided to undertake a series of diplomatic
steps at the UN, with particular emphasis on the Security Council, to bring
pressure on Libya to turn over the two suspects. To that end, after the
indictments were handed down, copies of the charges and the warrants as
well as the indictments were supplied to Libya's Permanent Representative
at the UN. Libya quickly responded by denying all knowledge of the
crime. Of course this was not unexpected.
* A few days later the U.S. and UK governments issued a joint
declaration stating that Libya must:
* Surrender for trial all those charged with the crime, and accept
responsibility for the actions of Libyan officials;
* Disclose all it knew of the crime, including the names of all
those responsible, and allow for full access to all witnesses,
documents, and other material evidence; and finally,
* Pay appropriate compensation.
The U.S., UK and French Governments then joined together to seek
action from the UN Security Council when the demands were not met.
The Security Council is the primary organ for addressing matters
relating to the maintenance of international peace and security under the
UN Charter. No country had asked the Council to involve itself in a
terrorist act such as Pan Am 103. There was, however, a willingness at the
time to consider the use of the Council's power under Chapter VII of the
UN Charter. Those powers authorize the use of economic or military
measures against a state to maintain or restore international peace and
security.
In the weeks that followed the collective demands of the U.S., UK, and
France, Libya showed no willingness to make the accused available for trial
or to acknowledge its involvement in the terrorist acts. This refusal allowed
the three governments to convince the Security Council to pass UNSCR
731 which adopted the three demands of the joint U.S./UK joint
declaration: that is, surrender the suspects and accept responsibility for
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actions of Libyan officials; disclose all it knew of the crimes; and pay
appropriate compensation.
UNSCR 731 was styled as a "request." When Libya failed to comply,
the U.S., UK, and France were successful in gaining passage of UNSCR
748, which made the provisions of Resolution 731 mandatory under
Chapter VII of the UN Charter. It also required that Libya commit itself to
cease all forms of terrorist action and assistance to terrorist groups and
prove renunciation of terrorism by concrete actions. Resolution 748
imposed a ban on flights to and from Libya, an arms embargo, a reduction
in the size of the Libyan diplomatic missions and the closure of all Libyan
Arab Airlines abroad.
After more than a year passed and still no action by Libya, the U.S.,
UK, and France convinced the Security Council to act again and to adopt
Resolution 883 in November 1993. Resolution 883 extended the sanctions
to include a partial freeze on Libyan public assets, an embargo on certain
oil industry equipment, and the tightening of existing measures. It also
provided an incentive for Libya to comply. Paragraph 16 of the Resolution
added that sanctions would be immediately suspended if Libya ensured,
among other things, the appearance of the accused for trial before "the
appropriate United Kingdom or United States court."
IV. Third Country Trial
I would like to say that with 883, the master strategy was all in place
for a trial in the Netherlands before a Scottish Court. In fact, at that point in
time, the idea of a third-country trial venue was not among the options
being considered by either the U.S. or UK. The hope was that Libya would
simply capitulate and turn over the defendants for trial in the U.S. and UK.
That was not in the cards, however, and over time, the sanctions regime
began to weaken. A new phrase was introduced into the lexicon:
"sanctions fatigue," where countries failed to enforce the various terms of
the Security Council's resolutions. This was a troubling development, one
in which the UN's authority was being eroded. There was a need to do
something. The third-country venue turned out to be the solution.
However, this solution did not become evident until later.
Between 1992 and 1994, ideas for a third country trial surfaced from a
number of quarters; a seven-man committee established by the League of
Arab States suggested a trial in France, in Libya or another Arab state.
Libya pursued the idea of a trial before the International Court of Justice in
The Hague, or a trial before a Scottish court under Scottish law sitting in
The Hague. The latter proposal was clearly a bluff-but nevertheless-one
that we would later take up.
From 1994-1997, the U.S. and UK Governments consistently rejected
any proposal which was not viewed as being consistent with the Security
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Council resolutions. Remember of course, Paragraph 16 of UNSCR 883
spoke only of the appearance of the accused before "the appropriate United
Kingdom or United States court" and by implication, that the court would
sit in Scotland or the U.S.
From the U.S. vantage point, acceptance of any proposal that appeared
to differ from this interpretation of 883 might be viewed (and was initially
viewed by the Attorney General) as a violation of our Counter-terrorism
Policy. The AG worried it might appear to some to give to those accused of
terrorism a choice as to where and how they should be tried. It might also
be seen as an acknowledgement that the accused would not get a fair trial in
the U.S. or in Scotland.
By the end of 1997, sanctions had been in place for over five years and
sanctions fatigue had set in with a vengeance. Various countries were
violating the embargo on trade, and the prohibition on flights was being
violated with alarming frequency. The victims' family groups were
concerned over the weakening sanctions regime and so were we. There
were also wild accusations of a U.S./UK cover-up. Most of the U.S.
families of the victims had brought suit against Libya in federal district
court in New York. On numerous occasions they requested that the U.S.
Department of Justice turn over the evidence supporting the indictment.
The U.S. "evidence" included a defector in the witness-protection program,
known only as "puzzle piece." He was later identified by the Scottish court
as Abdul Majid, a member of the Libyan External Security Organization.
The evidence could not, of course, be made public before the trial and, in
the absence of a public airing of the evidence, conspiracy theories
proliferated. The U.S. and UK were beginning to look, albeit unfairly, as
hostile to the families' efforts to obtain civil justice in the Courts. The tenth
anniversary of the crime-December 21, 1998-then only a year away,
brought increased pressure. Combined with France's decision to go
forward with the UTA bombing trial in absentia, both the U.S. and UK
were forced to reconsider the idea of a third country trial.
In January 1997, Madeleine Albright was sworn in as Secretary of
State. Not long after, she met with a family group representing victims of
Pan Am 103. As a result of this meeting and the sanctions fatigue
phenomenon she was keen on getting an initiative moving. On August 29, I
was confirmed by the Senate as the 19'h Legal Adviser to the Department of
State. In one of our first meetings, the Secretary raised the subject of
Lockerbie with me. She was clear that she wanted me to determine whether
a third country trial was possible from a legal standpoint and whether such
a trial would be consistent with the UN Security Council resolutions. If it
could be done, there was never any question of launching the initiative
simply to call Libya's bluff. Any initiative would have to be prepared on
the assumption that it would be accepted, even though there could be no
certainty of this. Every detail therefore had to be settled in advance. I set
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about with a few key members of my staff, including Bill Kissinger and
Mike Matheson, to outline what the initiative should look like.
V. The Initiative andAssociatedLegal Issues
To be consistent with UNSCR 883, the initiative would have to result
in trial by a U.S. or UK Court. It was obvious that a trial by a U.S. court
would not be politically acceptable, if for no other reason than the
likelihood the U.S. Department of Justice would seek the death penalty.
We knew that this would create an unnecessary obstacle to developing the
necessary international consensus to push the initiative. We decided early
on, therefore, only to explore the use of a trial before a Scottish Court.
We also knew we would need to find a country to host the trial that
would be considered "neutral" but which could work with us to design a
plan that would for all intents and purposes allow the Scottish court to sit as
if it were in Edinburgh.
Because of concerns about security and leaks at both the State
Department and the UK Foreign and Commonwealth Office (FCO),
knowledge of the Lockerbie initiative was "compartmentalized"-that is,
knowledge of the initiative and its contents was limited to only a few
people on each side of the Atlantic. Of course the President, who approved
the initiative, and National Security Adviser, Sandy Berger, were briefed,
but no more than six people at State, including Kissinger, Matheson and
David Welch, then the deputy assistant secretary for NEA, and four at the
Department of Justice including Janet Reno and Brian Murtagh, Deputy
Chief of the Terrorism and Violent Crime Section of the Criminal Division,
knew about it during the first few months of negotiations with the UK.
After receiving the go ahead from the President, Albright called Robin
Cooke, her British counterpart, to discuss the initiative. After a few days of
consultations in his government, Cooke had the authorization from his
government to work out the details with the U.S. Time was of the essence,
the longer negotiations took, the greater the chance of a leak.
The first of many trips to London for meetings with my UK
counterpart, Sir Franklin Berman, Legal Adviser to the FCO, and Tony
Aust occurred in late September. During 1998 I was the most frequent
State Department visitor to Embassy London. The Lord Advocate of
Scotland, Andrew Hardy, whose office would try the case, was brought into
the discussions after the first meeting with Sir Franklin.
After establishing that the Lord Advocate believed that he had
sufficient evidence to win the case, discussions between the U.S. and UK
covered some three dozen topics, all of which needed detailed
consideration. Our initial decision, however, focused on finding a "friendly
and compatible" host country. The Netherlands was an easy choice for all
of the obvious reasons, plus it had the advantage of having been suggested
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by Libya. We hoped the Dutch would agree, but due to concerns over
leaks, we felt we could not approach them until we had the entire program
between the U.S. and UK worked out.
Although we were shoulder-to-shoulder with the British and Scots
throughout this effort, there were many issues that needed to be resolved.
Nineteen of these topics required a substantial amount of our attention. Let
me give you a sense of the breadth of these issues:
* The first involved guarantees that the U.S. indictments would
not be compromised by a third country trial. DOJ was willing to
let the Scots take the first crack at trying the two but did not
want to be seen as compromising their indictments.
We
determined there was no international double jeopardy concept,
but politically it was important that the U.S. indictments remain
viable. We now know this was a false premise since most of the
evidence was aired at the Scottish trial, and if the Scots could not
get a conviction, it was doubtful we could. But, at the time, DOJ
wanted to protect its options in the event of a mistrial.
* Another very significant issue was the U.S. role at the Scottish
trial. We were concerned that the Scottish prosecutors might
want the U.S. prosecutors to take a more active role in the trial
which might legitimately raise the issue of double jeopardy
should we want to try the individuals in a U.S. court. We ended
up providing what evidence we had and the U.S. prosecutors
simply monitored the trial.
" Third was the composition of the court and the extent to which it
was in all respects a Scottish Court. We quickly realized that it
would be necessary to dispense with a jury since it would not be
practical to absent a group of Scottish citizens from Scotland for
the better part of a year. The Lord Advocate was prepared to
dispense with the jury, opting instead for a panel of three judges
plus one alternate. Otherwise, he was adamant that there should
be no divergence from Scots criminal law and procedure. This
required legislation, which the Lord Advocate, working with the
FCO, managed to craft as an "Order in Council" that created the
necessary legislative changes without requiring a vote by
Parliament.
* There were numerous issues on the scope of the Scottish Court's
jurisdiction-would it have contempt power, for example-as
well as the international treaty required to create a Scottish
island in the midst of the Netherlands. Since we had not yet
talked to the Dutch, this was an issue that had to wait until later.
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Other matters included sorting out such diverse issues as:
" ensuring that any UN Security Council resolution supported
extraditing the suspects only to the Scottish Court in the
Netherlands and no where else;
* resolving where the defendants would be imprisoned if
convicted;
* making arrangements for observers, since we anticipated that the
Arab League would want international observers;
* deciding whether witnesses would only testify in person or
potentially by electronic means;
* defining the ancillary jurisdiction of the court such as contempt;
(Ordinarily courts can imprison uncooperative witnesses. Would
we give the Court such authority? What about detention of
uncooperative witnesses?);
" Arranging for media coverage. Would media be allowed under
Scottish procedures? Would we allow TV coverage of the trial?
What about special arrangement for the Pan Am 103 families
and Lockerbie families?
* Who would pay for the specifically constructed courtroom and
jail while the suspects awaited trial?
All of these issues required careful consideration. For six months,
ending in April 1998, we worked through all of these and other questions
before distilling our conclusions in a memorandum of understanding
(MOU) between the U.S. and UK Governments. The U.S. Department of
Justice still was highly skeptical of this venture, but they reluctantly went
along with our agreements. Now came perhaps the trickiest and certainly
the most crucial part of our initiative: getting the Dutch to agree.
VI. The Dutch
On May 20, 1998, eight months after Secretary Albright and UK
Foreign Secretary Robin Cooke authorized me and my British counterpart
to begin negotiations on the terms of the MOU, the first meeting with the
Dutch took place. We presented them a slimmed-down version of the
U.S./UK MOU. After this initial meeting, the negotiations were completed
at an intensive three-day meeting in The Hague in late July. Matters were
somewhat complicated by the fact that a new Dutch Government had just
been elected, which came into being after our first meeting in May. For all
our careful planning we did not count on this event.
Luckily, the new Dutch Government was extraordinarily cooperative
and addressed this matter as one of its first items of business. An example
of their cooperativeness was their suggestion that there be no authentic
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Dutch language text-a requirement for most international agreementsthereby shortening considerably the process of agreeing to the final texts.
The UK/Dutch Agreement had to deal with three main issues: First,
the process by which the accused were to be transferred from Dutch to
Scottish jurisdiction. On landing in the Netherlands the two defendants
were within Dutch jurisdiction. There would have to be an immediate
request for transfer from Dutch jurisdiction to Scottish jurisdiction. This
would be accomplished in accordance with the existing extradition treaty
between the UK and Dutch Governments and the contemplated UN
Security Council resolution under Chapter VII which would ask the Dutch
Government to "hold" or detain the suspects prior to transfer to the Scottish
authorities.
The second was the legal basis for holding the accused by the Scottish
authorities for trial. Scottish law would have to provide for this and the
Netherlands would have to agree to this exercise of foreign criminal
jurisdiction on its territory. The agreement addressed these issues and other
matters to ensure that the defendants would be held "within the premises of
the Scottish Court in accordance with Scots law and practice." Following
the trial and appeals the Dutch Government wanted the Court's existence to
terminate. The agreement therefore provided that the trial would be a onetime event.
The third matter was the limits on the jurisdictional powers of the
Scottish Court and Scottish authorities when in the Netherlands for the
purpose of trial. The agreement provided that the jurisdiction of the
Scottish Court and Scottish authorities "is limited to the trial."
Nevertheless, the Court needed to have certain incidental jurisdictional
powers to deal effectively with matters which might arise during the course
of the trial, such as contempt of court and general order on the premises of
the Court. We also wanted the Court's activities to be "ringfenced," so that
it could operate freely without any danger of the accused or anyone else
being able to complain to the Dutch courts. It was necessary for this to be
expressly acknowledged in the Agreement so that it would be clear that the
Dutch courts would have no jurisdiction.
This, of course, raised tricky issues. What happens if one of the
defendants fell ill and required medical treatment? Camp Zeist had only
limited facilities. If a defendant required hospitalization in a Dutch
hospital, how would we deal with the renewed jurisdictional questions?
Would they then be subject to the jurisdiction of Dutch Courts? We had to
deal with these issues as well.
Most of the rest of the Agreement dealt with diplomatic privileges,
immunities and facilities for the Court and persons connected with it, and
cost. We were convinced that the initiative was consistent with and well
within the terms of UNSR 883. In the words of 883, this would be a trial
before "the appropriate United Kingdom court."
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Having obtained Dutch consent to plant a patch of Scottish territory in
the Netherlands, the next question was where. The Dutch quickly identified
several possible sites. We settled on a former World War II U.S. air base
then in the hands of the Dutch Air Force--Camp Zeist-as the venue. This
particular aspect raised one of the few humorous moments in the
negotiations as we had to make special arrangements for the Royal Dutch
Air Force Band that then called Camp Zeist home. We spent considerable
time discussing the needs of the musicians and what facilities they would
require for a new home.
Once we had the arrangements with the Dutch completed, we prepared
a joint U.S./UK letter to the UN Secretary-General to launch the initiative
as well as a draft Security Council Resolution. The UK drew up the
necessary Scottish legislation.
By July 1998, all the groundwork was done and we were ready to
announce the initiative.
II. Launching the Initiative
On August 5, I flew to New York to meet with the UN Legal Adviser
Hans Corell to brief him on the initiative. A few days later I flew to Paris
to brief the French who had not been involved in any of these discussions.
On August 24, Secretary Albright called the American Pan Am 103
families and told them about the initiative. Robin Cooke did the same for
the UK families. We received a mixed reaction from the various U.S.
family groups, some in favor, and some against. Those against mostly
favored some form of military action against Libya.
The same day, the U.S. and UK Permanent Representatives to the UN
sent the joint U.S./UK letter to the Secretary-General launching the
initiative.
We had concluded the Secretary-General would be the
appropriate intermediary with Libya, since neither the U.S. nor the UK
wanted to deal directly with its representatives. In particular we did not
want to appear to be negotiating with Libya, directly or indirectly, over the
terms of a trial. Thus, the letter to the Secretary-General made clear that the
initiative was a "take it, or leave it" proposal. There would be no
negotiations over its terms.
On August 27, the Security Council unanimously adopted Resolution
1192, the first unanimous vote on a Lockerbie resolution since the initial,
UNSCR 731 in January 1992. Resolution 1192 repeated the demand that
Libya comply with the previous resolutions. It called upon the SecretaryGeneral to assist the Libyan Government with the "physical" arrangements
for the safe transfer of the defendants to the Netherlands and addressed our
concern they might try to seek asylum or deploy some other delaying or
obstructive tactics. It also provided that the sanctions would remain in
force, but would be "suspended immediately if the Secretary-General
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reported to the Security Council that the two had arrived in the Netherlands
for the purpose of trial before the Scottish Court" and that "the Libyan
Government has satisfied the French judicial authorities with regard to the
bombing of UTA 772." The latter provision was necessary and an
important reminder that the previous resolutions were not only about
Lockerbie.
In the seven months between adoption of Resolution 1192 and the
handover of the accused in the Netherlands on April 5, 1999, two key
activities took place. First, the holding cells and the courthouse at Camp
Zeist were constructed. We had spent enormous time and effort making the
legal and diplomatic arrangements. It was now time to spend money on
bricks and mortar to ensure we could actually go forward with the initiative
if the two suspects were turned over.
Second, we began an intense diplomatic effort to persuade Libya to
hand over the defendants. To that end, UK and UN diplomats around the
globe were deployed to convince other nations to push Libya to accept the
terms of the initiative. At the request of the Secretary General, Nelson
Mandela and Prince Bandan bin Sultan joined the effort. Given the desire
for a solution to the seemingly intractable problems we faced with the
eroding Libyan sanctions regime, we received a favorable response, with
numerous other countries pushing Libya to accept the proposal.
Libya began to show some signs of interest. Through an interlocutor,
Libya asked questions about Scottish criminal law and procedure. The
Secretary General commissioned a study on the Scottish legal systems.
Libya was moving toward a favorable decision.
On April 5, the Secretary General announced that the defendants had
arrived in the Netherlands, where they had been detained by the Dutch
authorities. He added that the French Government had informed him that
the Libyan Government had satisfied the French judicial authorities with
regard to UTA flight 772. In short, all the conditions for the suspension of
sanctions had been met and they were suspended on that day in accordance
with Resolution 1192.
That same day, an extradition hearing was held in a Dutch court. The
accused did not challenge their extradition to Scottish jurisdiction, and they
were transferred to the Scottish authorities at Camp Zeist. There, they were
arrested by Scottish police officers, and, on April 6, 2001, the charges for
murdering 270 people were read to them. They were brought before
Graham Cox, the Sheriff Principal of South Strathclyde, Dumfries, and
Galloway and the judge with jurisdiction for the Lockerbie area. He
remanded them in custody within the premises of the Court. On April 14,
the judge committed the accused for trial. In January 2001, Al Megrahi
was convicted. Al Megrahi's appeal was denied in March 2002 and he is
now serving his prison sentence in Scotland.
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VIII. Achievements and Lessons Learned
Measured against the goal of conducting a Scottish trial in a third
country, the U.S./UK effort was a stunning success especially when one
considers all the pieces that had to be put in place. But it was not without
significant costs: The trial alone cost more than $150 million and involved
virtually every level of the UK, U.S., and Dutch governments, not to
mention diplomats at the UN and around the world. Was this effort worth
it? I think the answer to that question is a qualified yes.
For at least some of the victims' families, it brought closure and an
airing of the evidence against Libya. For others, though, it brought further
anguish because the trial did not convict Muammar Gaddafi, who, for
many, is the real culprit.
Equally important, the initiative provided a means for Libya to take
steps to make amends for its terrorist behavior. In the aftermath of the
criminal trial, Libya reached settlements with the Pan Am 103 families,
paying each family approximately $10 million. It also settled with the UTA
victims' families. The recent willingness of Libya to turn equipment and
materials associated with its former WMD programs and the normalizing of
diplomatic relations with the U.S. and Europe all began with the Lockerbie
trial. So on balance, I believe the trial and the efforts leading up to it were
worth the cost.
There are some important lessons, however, that we ought to take from
the experience. Perhaps most notable is that the third country trial is not a
model that we ought to consider lightly, if ever. The process of setting up
such a specialized tribunal is cumbersome and enormously time consuming.
Given the political and practical situation we faced with Libya, this solution
was appropriate, and it worked. But it is hard to imagine a situation in the
future that would lend itself to a similar solution-I hope not, anyway, for
the sake of my successors!